Balmiki Bhagat v. State Of Bihar — 1992 DIGILAW 211 (PAT)

Judgment S. B. Sinha and J JJ. 1. This application is directed against an order dated 11/5/1992 passed by the Additional Member Board of Revenue (Respondent no.2) in Ceiling Revision No.4-A/92 and the order dated 28/1/1992 passed by the Collector, Begusarai (Respondent No.3) in Ceiling Appeal No.55/89 as contained in Annexures-5 and 4 respectively as also a direction upon the respondents to restore the petitioners possession over the lands in question from which he had been dispossessed on 7/2/1992 by the Sub-Divisional officer. 2. The petitioner is said to be the bataidar of A. P. S. Trust, Naokothi, Begusarai in respect of Plot Nos.456, 457 and 458 appertaining to kbata Nos.292 and 372 measuring an area of 1 Bigha 18 Kathas. 3. The aforementioned A P. S. trust allegedly surrendered an area of 1327 acres of land to the State of Bihar in term of the provisions contained in Sec.15-A of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the said Act) in respect whereof a notification dated 20th June, 1976 was issued in the official Gazette. On 8/7/1976 i. e. within the period prescribed under Rule 25 of the bihar Land Ceiling Rules 1963 the petitioner filed an application under section 22 (1) of the Act in the prescribed form The said application was rejected along with 79 other similar cases. 4. An appeal was preferred by the petitioner which was dismissed. The petitioners thereafter filed a revision application and by its resolution dated 1/3/1998 the Board of Revenue remanded the matter back to the collector for hearing the case on merits. 5. A report was called for from the Deputy Collector Land Reforms, (Respondent No.6) who held a local inspection and allegedly found that the petitioner had been the under raiyat of the Trust for more than twenty years. 6. However, during pendency of the appeal, Ordinance No 66 and 201 of 1981 came into force as a result whereof the appeal stood abated. 7. The matter came upto this court in CWJC No 2878 of 1982 and by an order dated M-12-1987 the Additional Collector was directed to hear the petitioners case on merits. 8. According to the petitioner before the Additional Collector the respondent Nos.7 to 9 also appeared and they were also heard, but they did not examine any witnesses. 9. 7. The matter came upto this court in CWJC No 2878 of 1982 and by an order dated M-12-1987 the Additional Collector was directed to hear the petitioners case on merits. 8. According to the petitioner before the Additional Collector the respondent Nos.7 to 9 also appeared and they were also heard, but they did not examine any witnesses. 9. By an order dated 7/9/1989, the petitioners application under section 22 (1) of the Act was allowed. The respondent No.7 to 9 who are the purcha-holders preferred an appeal before the respondent No.3 against the said order who called for a report from the Sub-Divisional Officer (Respondent No.5) The Sub divisional Officer submitted a report on 31/7/1990. In terms of the aforementioned report, the appeal preferred by the respondent Nos.7 to 9 was allowed by an order date 28/1/1992 as contained in Annexure-4 to the writ application. 10. The petitioner thereafter filed a revision application which has been dismissed by a resolution dated 11/5/1992. It has been coptended that in between the period 20th June, 1976 to 27th July 1976, purchas have been distributed to the respondent Nos.7 to 9. 11. Mr Indu Shekar Sinha, the learned counsel appearing on behalf of the petitioner submitted that the Appellate and the Revisional authorities in passing the impugned order as contained in Annexures 4 and 5 respectively, committed errors of records in so far as it was held that the petitioner did not adduce any evidence in support of his claim ignoring the fact that the report of the Land Reforms Deputy Collector itself was an evidence of the petitioners status as under raiyat as also a proof that had been in possession of the lands in question for twenty years. 12. It has further been submitted that the purcha-holders had not come in possession prior to 7/2/1992. It has further been submitted that the petitioner had a right to file an application under Sec.22 of the Act within a period of thirty days from the date of the issuance of a notification, and thus before expiry of the said period, no purcha could have been distributed within the aforementioned period. 13. It has further been submitted that the petitioner had a right to file an application under Sec.22 of the Act within a period of thirty days from the date of the issuance of a notification, and thus before expiry of the said period, no purcha could have been distributed within the aforementioned period. 13. It has further been submitted that from a perusal of the order passed by the Collector under the Act, it would appear that 10 persons were examined by the Collector who stated that the petitioner was in possession of the lands in question for twenty years and he was also found to have raised crops thereupon but despite the same it was held by the appellate authority that the petitioner was not in possession of the lands in question and the lands had already been distributed to the purcha-holden. 14. Our attention was further drawn to the fact that even the Additional Collector in bis order as contained in Annexure-2 to the writ application, had noticed that six persons were examined before him and they were also cross-examined The said witnesses, according to the Additional collector supported the case of the petitioner. 15. Mr. B. P. Verma, the learned Standing Counsel appearing on behalf of the State, however, submitted that the purcha-holders had been given purcha much prior to filing of the application by the petitioner under section 22 (1) of the Act. He further submitted that the enquiry was not conducted by the L. R. D C, in presence of the purcha-holders nor did he give an opportunity to them and thus his report as contained in Annexure-1 to the writ application cannot be taken into consideration. 16. It has further been pointed out that the learned Additional collector while passing his order dated 7/9/1989 as contained in Annexure-2 to the writ application did not call for a fresh report. 17. It has also been submitted that in the trust deed of 1945 executed by Ayodhya Singh in terms of the aforementioned A. P. S. Trust was stayed, a clear stipulation was made to the effect that no under-raiyat shall be inducted in the lands of the trust. 17. It has also been submitted that in the trust deed of 1945 executed by Ayodhya Singh in terms of the aforementioned A. P. S. Trust was stayed, a clear stipulation was made to the effect that no under-raiyat shall be inducted in the lands of the trust. It has further been submitted that after the notification under Section 15-A of the Act was issued, the lands in question vested in the State of Bihar and as far back as on 20th June, 1976, the lands were distributed. 18. Mr. Verma also submitted that from a perusal of the report of the Sub-Divisional Officer as contained in Annexure-3 to the writ application, it would be evident that purcha-holders were found to be in possession. 19. In reply, our attention has been drawn by the learned counsel appearing on behalf of the petitioner that the statements regarding the possession of the petitioner, despite distribution of the purchas, had not been controverted in the counter affidavit filed on behalf of the State. 20. It was further submitted that even the affidavits sworn by Bishundeo Singh who is an employee of the trust has not been taken into consideration which is contained in Annexjire-6 to the writ application. 21. It is unfortunate that a case of this nature had remained pending decision for such a long time. 22. From a perusal of the order dated 7/9/1989 passed by the Additional collector, Begusarai, it is evident that witnesses were examined in the proceeding before the Collector of the Act as also before the Additional collector. 23. The learned Additional Collector has also referred to an order dated 13/10/1979 passed by the Sub-Divisional Officer being Case No.101m/ 79 in a proceeding under Sec.144 of the Cr P. C wherein the possession of the petitioner was found. He further relied upon the report of the land Reforms Deputy Collector dated 22/12/1980 in connection with revenue Misc. Case No.105/1977-78 and therein also the possession of the petitioner had been found. 24. However, despite the same the Collector of the District acting as an appellate authority purported to have palled for a fresh report from the Sub-Divisional Officer. The Collector under the Act has not assigned any reason in support of his order nor had he taken into consideration the materials on records upon which reliance was placed by the Additional collector in passing his order. The Collector under the Act has not assigned any reason in support of his order nor had he taken into consideration the materials on records upon which reliance was placed by the Additional collector in passing his order. The Collector of the District appears to have only relied upon the report of the Sub-Divisional Officer. 25. In this view of the matter the said order cannot be sustained. The Additional Member, Board of Revenue disposed of the revision application at the stage of admission itself. According to the learned Additional Member, Board of Revenue, the trust in his application of surrender had not shown the petitioner as under-raiyat. He further found that the Government notification also does not show that the lands in question have been given to the petitioner as bataidar. 26. The learned Additional Member Board of Revenue in his order has held that only a duly recognised under-raiyat can maintain an application under Sec.22 of the Act and as the petitioner could not show that he was an under-raiyat of the trust, his claim cannot be accepted. 27. The learned Additional Member Board of Revenue, however, observed as follows: - "in case of a dispute between an undcr-ratyat and bis landlord the provisions of Sec.48 (E) of B. T. Act will come into play. The petitioner, if so advised, may first get his claim established under Sec.48 (E) and then only he could justifiably file an application under Sec.22. " 28. From a perusal of impugned order as contained in Annexures 4 and 5 to the writ application, it does not appear that any embargo was placed in the deed of trust created by the Ayodhya Singh in the year 1955 that the lands in question cannot be given to undct-raiyat. 29. However such a statement has been made in the counter affidavit. It has been stated in paragraph 21 that even an application filed by the petitioner under Sec.48e (1) of the Act was dismissed. However, from a perusal of the impugned order as contained in annexures 4 and 5 to the writ application, it appears that the appellate and the revisional authority did not at all take into consideration the materials placed on records. A report was called for from the Sub-Divisional Officer by the Appellate authority which was only a piece of evidence. The said report is not a contemporaneous document. A report was called for from the Sub-Divisional Officer by the Appellate authority which was only a piece of evidence. The said report is not a contemporaneous document. As indicated hereinbefore, even prior to filing of the said report, the parties had been fighting in a proceeding under Sec.144 of the Cr. P. C. It is true that a proceeding under section 144 of the Cr. P. C. the Sub-divisional Magistrate being the executive Magistrate cannot decide the question of possession but the said order at least is a pointer to the fact that there had been a dispute with regard to the possession leading to apprehension of breach of peace and the prohibitory order passed under Sec.144 of the Cr. P. C. was made absolute against the respondent Nos.7 to 9. The Ceiling authorities however were bound to decide the question of possession of the petitioner as on the date of surrender. If he was inducted as an under-raiyat by the trust he had a right to file an application under section 22 of the said Act. 30. The petitioner could not have been deprived of such a valuable statutory right only because the collector under the Act took hasty steps in distributing the purchas and/or dispossessing the petitioner therefrom (assuming that the contention of the respondents that the possession had been delivered to the purcha-holder is correct ). 31. The respondents also committed an illegality in passing the impugned order as contained in Annexure-5 in so far as it was observed therein that the A. P. S. Trust did not show the petitioner as its bataidar. It was not necessary so to do in law nor the prescribed form contains any such column. The Member Board of Revenue also mis-directed himself in observing that the petitioner is first required to get his right adjudicated in a proceeding under Sec.48e (1) of the Act. The said observations are wholly mis-placed keeping in view the fact that at present no such application would be maintainable as the then landlord of the petitioner namely a. P. S. Trust has surrendered its right, title and interest in favour of the state of Bihar and thus the question of any dispute with regard to relationship of landlord and tenant does not arise nor there can be any threatening of the petitioner being dispossessed by the landlord. 32. 32. For the reasons aforementioned, the impugned orders as contained in Annexures 4 and 5 cannot be sustained. They are accordingly quashed and the matter is remitted to the Collector of the district to pass a fresh order in accordance with law expeditiously. Let a writ of certiorary issue accordingly. 33. This application, is thus, allowed but without any order as to costs.